THE APPEARANCE OF IMPROPRIETY
THE ODOR OF MENDACITY
By now, everyone in America knows that Georgia’s Judge Scott McAfee ruled that an “appearance of impropriety” required County Prosecutor Fani Willis to either recuse herself from handling the Georgia racketeering case against former president Donald Trump or fire her hand-picked former lover/special prosecutor, Nathan Wade. The judge did not find an actual conflict of interest—only this “appearance” of one and an “odor of mendacity.”
Wade has since resigned. Any other decision would have assisted the obvious strategy of Trump’s defense team. The defendant’s attorneys have made no secret of their plan. Here’s defense attorney Steve Sadow’s reaction to Judge McAfee’s ruling:
“While respecting the Court’s decision, we believe that the Court did not afford appropriate significance to the prosecutorial misconduct of Willis and Wade . . . We will use all legal options available as we continue to fight to end this case, which should never have been brought in the first place.”
Get the idea? This is one more example of the universal Trump case strategy to delay, deny, confuse, and refuse until, at least, after the 2024 election. If he wins in November, all remaining indictments would likely be held in abeyance. On the federal side, he would likely pardon himself (and our current Supreme Court would allow him to do so).
The prosecutorial misconduct in question is an “improper” sexual relationship between Willis and Wade. This side-show has dominated the headlines for the past two months. Instead of moving this vital case toward trial, the judge chose to shine an ethical spotlight on the lead prosecutor instead of focusing on the despicable behavior of the defendant, former President Trump.
While I am not condoning or excusing Willis’s conduct or abject stupidity in appointing Wade in the first place, why has Judge McAfee focused on the prosecution’s “appearance of impropriety” rather than the vital interests of the country? Isn’t deciding whether then-POTUS, now-candidate Trump, attempted to illegally overturn the results of an election the more critical ethical, legal, and criminal issue? What does Wade and Willis’s sexual relationship have to do with the case’s bottom line, Trump’s guilt or innocence?
Let’s be clear: The judge found no actual conflict to disqualify Willis. A conflict usually applies to the judge, not the attorney pursuing a case. Willis isn’t deciding Trump’s guilt or innocence; McAfee is. What difference does it make whether the co-prosecutors are sleeping together? Does it have an “odor of mendacity?” Perhaps. But why is it relevant to this case? Here’s a portion of McAfee’s ruling:
“Without sufficient evidence that the District Attorney acquired a personal stake in the prosecution, or that her financial arrangement had any impact on the case, the Defendants’ claims of an actual conflict must be denied.”
The judge calls Willis’s behavior a “tremendous lapse in judgment” but states, "Georgia law does not permit a finding of an actual conflict for making bad choices.” He is correct. So, why did he waste two and a half months litigating the issue? If Willis moves quickly, perhaps the case will continue rapidly. The good news is that McAfee gave the defendants considerable rope to prove a conflict, and they failed to make the case. Had the Fulton County Prosecutor been disqualified, the case might have been delayed for months, even years.
Judicial impartiality is fundamental to the rule of law and the public’s confidence in our justice system. In many current Trump cases, questions remain about certain trial judges’ impartiality. While judges must be impartial, prosecutors have no such duty. While impropriety is no cousin to impartiality, shouldn’t the alleged impropriety be remotely relevant to the case? I detest everything about Donald Trump. Those feelings may prevent me from being his judge or a citizen on his jury, but they do not stop me from being his prosecutor. The judge went out of his way to condemn Willis but knew there was no conflict. Appearance-based partiality or ethical questions may mandate a judge to recuse him or herself, but there is no such requirement for a prosecutor.
Hopefully, the furor involving Willis and Wade will soon calm down, and the case will move forward expeditiously. The case concerns Donald Trump’s unethical, dangerous, and criminal behavior. Richard Nixon once famously remarked, “People have got to know whether or not their president is a crook.” I couldn’t agree more.